The Jurisprudence of Lies

I have often written about how our nation is no longer truly governed by our elected representatives, but is instead dominated by unelected, unaccountable Black-Robed Platonic Guardian Rulers on the Courts. By that I primarily mean the body of men and women who have received life-time appointments to the federal courts, and who use their enormous power to invent new principles of law that have either been rejected by the democratic process or never contemplated by it.

This judicial oligarchy has a long history. The fundamentally false concoction of abortion law is the perfect example -- a body of alleged jurisprudence that declares that unborn children have no rights that born people are bound to respect. We saw the rash of lawlessness surrounding the redefinition of marriage, resulting in the intellectually incoherent stew of the
Obergefell and
Windsor decisions.

We are now seeing it in the infiltration of sexual orientation and gender ideology into the judicial mindset, resulting in a growing jurisprudence of lies. In the last two weeks, we have seen ample evidence. Both cases involve judicial re-invention of the plain, clearly-understood meaning of a federal statute -- Title VII of the 1964 Civil Rights Act, which in part prohibits discrimination on the basis of "sex".

As one federal judge recently said, “In common, ordinary usage in 1964 -- and now, for that matter — the word ‘sex’ means biologically male or female; it does not also refer to sexual orientation.” There really is no intellectually coherent way to understand Title VII as having anything to do with notions of "sexual orientation" or "gender identity". In fact, every "LGBT" organization understood it that way, since they have spent, and continue to spend, a great deal of time, energy and money trying to amend the law to include "sexual orientation" and "gender identity". But Congress has consistently rejected those amendments.

Now, in order to be valid and legitimate, any law has to have certain characteristics. St. Thomas Aquinas would define a law as "an ordinance of reason for the common good, made by him who has care of the community, and promulgated." So a law has to make sense and be reasonable. It has to be enacted through the proper process -- in the United States, that means passed by a legislature and signed by an executive. It must be clear so that ordinary people can understand it, and it cannot change constantly or be subject to shifting sands of interpretation -- it has to be predictable so that people will know what is expected of them. It has to be made public so that there are no secret meanings that people will be held accountable for. If an enactment does not have these characteristics, it is arbitrary and subject to the abuse of power and the advancement of special interests rather than the common good. It is not law at all, but merely an imposition of power.

This is where our lawless oligarchic judiciary comes in. Last week, the 6th Circuit Court of Appeals, based in Ohio, ruled that Title VII isn't just limited to discrimination on the basis of "sex", it also bans discrimination based on "transgender and transitioning status". Perhaps that was in the statute all along, but in invisible ink? The alleged basis for this decision was a prior Supreme Court ruling that a woman could not be penalized because she did not conform to some stereotypes of how a woman should dress and act. It's important to note that the court was completely unimpressed by what the term "sex" was understood by everyone to mean when the law was enacted. They just blew right past that and re-defined the word to fit their own ideological agenda, turning the law into a lie.

By doing so, the court fell right into the utter incoherence of gender ideology. That bizarre body of thought rejects the male/female sexual binary, denies that biological sex has any significance to a person's self-defined identity, holds that "gender" is an invented social construct designed to oppress sexual minorities, and maintains that a person can change their "gender identity" into anything they want. If that's the case, then "transgender and transitioning status" clearly has nothing to do with "sex", because it entirely rejects the normative relevance and value of sex. But by trying to shoehorn "transgender and transitioning status" into the term "sex", the advocates -- and the court they bamboozled -- are trying to have it both ways by saying that "sex" is both irrelevant and a decisive factor. They want to eliminate "sex" but still benefit from it when it suits them. Talk about stacking the deck in your favor.

The second example of judicial usurpation took place earlier this week. The 2nd Circuit Court of Appeals, based here in New York, overturned its precedents and held that Title VII's term "sex" also includes "sexual orientation". That's quite an expansive word, isn't it? Once again, the court just re-invented the word at the wave of a hand. As one of the dissenting judges said, "the majority misconceives the fundamental public meaning of the language of the Civil Rights Act... By prohibiting discrimination against people based on their sex, it did not, and does not, prohibit discrimination against people because of their sexual orientation." To say that "sex" in Title VII means anything other than "male" or "female" is just a lie.

Our Church calls us to avoid any unjust discrimination against homosexual persons. But different treatment of homosexual persons is fundamentally not the same as discrimination on the basis of "sex" or even "sexual stereotypes". Sex discrimination involves negative treatment against a person because of who they are -- male or female -- or whether they meet certain notions of how a man or woman should behave. Differential treatment of homosexual persons is not like that at all -- it is based on disapproval of anyone, male or female, who has sexual attractions or engages in sexual behavior that is considered immoral or otherwise unacceptable. That may indeed be invidious discrimination in some cases, but it certainly is not what Congress meant, or what anyone understood, when Title VII was enacted. To treat such different legal concepts as if they were the same is just a lie.

In 1820, Thomas Jefferson wrote a letter in which he discussed his views about the proper role of the judiciary in the American constitutional system. In his letter, Jefferson made a famous observation:

You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.